STATE OF OHIO, Plaintiff-Appellee, vs. DUSTIN A. DECKARD, Defendant-Appellant.
Case No. 16CA14
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
Released: 11/01/17
[Cite as State v. Deckard, 2017-Ohio-8469.]
DECISION AND JUDGMENT ENTRY
Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.
Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher, Gallia County Assistant Prosecuting Attorney, Gallipolis, Ohio, for Appellee.
McFarland, J.
{¶1} Dustin A. Deckard appeals the judgment entry filed August 31, 2016 in the Gallia County Court of Common Pleas. Deckard was convicted by a jury on three counts: (1) illegal conveyance of drugs onto grounds of a detention facility,
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On February 29, 2016, Dustin A. Deckard was incarcerated at the Gallia County Jail. According to the trial testimony, he was booked in around 9:00 a.m. that day. During the evening hours, Deputy Cain noticed an odor similar to burning plastic. Appellant was in a cell block with approximately 8 to 10 other inmates.
{¶3} During a search Deputy Cain discovered suspected drugs on Appellant‘s person. The substances were submitted to the Ohio Bureau of Criminal Identification and Investigation (BCI) for analysis. A written report obtained from BCI indicated the substances submitted contained heroin and cocaine.
{¶4} On June 16, 2016, Appellant was indicted on three counts: (1) illegal conveyance of drugs onto grounds of a detention facility, in violation
{¶5} On July 8, 2016, Appellant‘s counsel was granted leave to withdraw. The court appointed another attorney to represent him. On August 24, 2016, the State filed a motion to continue the jury trial on the basis of the unavailability of a witness: the chemist from the Ohio Bureau of Criminal Investigation (BCI). The trial court denied the State‘s request.
{¶6} On August 29, 2016, prior to the beginning of trial, Appellant‘s counsel filed a motion in limine seeking exclusion of the BCI laboratory report which identified the substances found on Appellant‘s person as heroin and cocaine. The trial court denied this motion. During trial, the court allowed the BCI report to be admitted into evidence. At the conclusion of trial, the jury returned guilty verdicts on all three counts.
{¶7} On August 31, 2016, the trial court conducted Appellant‘s sentencing hearing. After hearing arguments from the parties regarding the
{¶8} This timely appeal followed. Additional facts will be set forth, where pertinent.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT DEPRIVED DECKARD OF HIS CONSTITUTIONAL RIGHT TO CONFRONTATION BY ADMITTING INTO EVIDENCE A LABORATORY REPORT UNDER NOTICE-AND-DEMAND STATUTE (
R.C. 2925.51 ) FOR THE PROSECUTION OF A CHARGE NOT WITHIN CHAPTERS 2925 OR 3719 OF THE REVISED CODE.II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DECLINING TO MERGE CONVICTION FOR ILLEGAL CONVEYANCE OF DRUGS ONTO GROUNDS OF DETENTION FACILITY WITH CONVICTIONS FOR POSSESSION OF DRUGS.
III. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR ILLEGAL CONVEYANCE OF DRUGS ONTO GROUNDS OF DETENTION FACILITY.”
LEGAL ANALYSIS
ASSIGNMENT OF ERROR ONE
{¶9} Under the first assignment of error, Appellant argues that the trial court committed reversible error by depriving him of his constitutional right to confrontation. At trial, the trial court admitted Exhibit 7, a BCI
STANDARD OF REVIEW
{¶10} The admission of evidence is within the sound discretion of the trial court. State v. Jackson, 4th Dist. Washington No. 12CA16, 2013-Ohio-2628, ¶ 16; State v. Dixon, 4th Dist. Scioto No. 09CA3312, 2010-Ohio-5032, ¶ 33, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), at paragraph two of the syllabus. Because a trial court‘s decision on a motion in limine is a ruling to admit or exclude evidence, the standard of review on appeal is whether the trial court committed an abuse of discretion that amounted to prejudicial error. State v. Fowler, 10th Dist. Franklin No. 15AP1111, 2017-Ohio-438, ¶ 14; Gordon v. Ohio State Univ., 10th Dist. Franklin No. 10AP-1058, 2011-Ohio-5057, at ¶ 82. An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the court that is unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriff‘s Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 506, 589 N.E.2d 24 (1992); Wilmington Steel Products, Inc. V. Cleveland Elec. Illuminating Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). When applying the abuse of discretion standard, a reviewing court is not free to
LEGAL ANALYSIS
{¶11} The transcript of Appellant‘s trial reveals that on the morning of trial, Appellant filed a motion in limine to exclude the laboratory report on two grounds: (1) that it was inadmissible hearsay under
{¶12} Appellant‘s trial counsel argued the State had provided the lab report in discovery to Appellant‘s prior counsel.1 Trial counsel then filed a motion under
{¶13} Trial counsel argued that pursuant to the statute, the trial court had the discretion to extend the time for filing in the interest of justice. In response, the State argued that it had intended to have the BCI analyst appear at trial but she was pregnant and unable to travel. The State maintained, however, that since Appellant had not made his request within
{¶14} We recently discussed a Confrontation Clause argument in State v. Smith, 70 N.E.3d 150, 2016-Ohio-5062 (4th Dist.). “The Sixth Amendment‘s Confrontation Clause provides, ‘In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.’ ” Smith, supra, at 75, quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 34. The Confrontation Clause of the Sixth Amendment is made applicable to the states by the Fourteenth Amendment. State v. Issa, 93 Ohio St.3d 49, 752 N.E.2d 904, fn. 4 (2001). Consequently, this constitutional right applies to both federal and state prosecutions, but the right of confrontation in Article I, Section 10 of the Ohio Constitution provides no greater right of confrontation than the Sixth Amendment. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12.
{¶15} “The United States Supreme Court has interpreted [the Sixth Amendment right to confrontation] to mean that admission of an out-of-
{¶16} In Ohio,
{¶18} In Judy, the appellant contended that she was deprived of her right of confrontation by the improper admission of testimonial evidence. Specifically, Judy questioned whether a BCI lab report may be admitted as evidence in the absence of expert in-court testimony from the lab analyst. Judy relied on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), and State v. Smith, 3rd Dist. Allen No. 1-05-39, 2006-Ohio-1661, in support of her contention that such lab reports are testimonial in nature. However, as a result of Judy‘s failure to object to the admission of the report on Confrontation Clause grounds, it was necessary for us to determine only
{¶19} In Judy, we cited a Twelfth District Court which held that a drug analysis report completed by BCI does not constitute “testimonial” evidence under Crawford and therefore, the defendant‘s Confrontation Clause rights under Crawford were not violated by the report‘s admission into evidence. Id. at 17. See State v. Malott, 12th Dist. Butler Nos. CA2007-02-006, CA2007-02-007, CA2007-02-008, 2008-Ohio-2114, ¶ 15. The Malott court cited the Supreme Court of Ohio‘s decision in State v. Crager, 116 Ohio St.3d 369, 2007-Ohio-684, that the admission of DNA reports without the testimony of the analyst who prepared the report did not violate the defendant‘s Confrontation Clause rights under Crawford since the reports fell within the business records exception to the hearsay rule of
{¶20} Judy was decided by our court in 2008. Subsequently, it was held that the contents of a laboratory report is testimonial in nature when its conclusion is prima facie evidence of an element of the offense. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, (2009); Bullcoming v. New Mexico, 564 U.S. 647, 663-664, 131 S.Ct. 2705, 2716, (2011). See State v. Hartman, 64 N.E.3d 519, 2016-Ohio-2883, at ¶ 82 (2nd Dist.). On the basis of Melendez-Diaz, the United States Supreme Court vacated, but did not reverse, the Crager decision.3
{¶21} In this case, at the conclusion of trial when the State rested, Appellant‘s trial counsel made a
{¶22} We reiterate that counsel originally objected to admission of the laboratory report via a motion in limine. “A motion in limine is a means of raising objection to an area of inquiry to prevent prejudicial questions and
{¶23} While we observe that Appellant filed the motion in limine and renewed his objection at trial, another factor to be considered in our analysis herein is that Appellant did not object to the admission of the report at the
{¶24} “[F]or a reviewing court to find plain error: (1) there must be an error, i.e., ‘a deviation from a legal rule;’ (2) the error must be plain, i.e., ‘an “obvious” defect in the trial proceedings;’ and (3) the error must have affected ‘substantial rights,’ i.e., it must have affected the outcome of the proceedings.” Layne, supra, at 8, quoting State v. Spires, 4th Dist. Gallia No. 10CA10, 2011-Ohio-3661, at ¶ 14; citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. The Supreme Court of Ohio has admonished courts that notice of plain error under
{¶25} We do not find that error, plain or otherwise, occurred here. Appellant‘s request was not timely filed and the court, in its discretion, did not extend the time to allow for a late filing. Furthermore, Appellant apparently conceded the drugs found on his person were cocaine and heroin, and he abandoned his argument regarding the possession counts. The trial transcript reveals Appellant‘s trial counsel made these comments during his closing argument:
“The burden is on the State here to prove each and every element of this case and yes, from the beginning I stated they had a strong case for the possession. And in fact I think we caught Mr. Deckard red-handed with, with the drugs on him. That‘s, that‘s the case. But the third charge, Count 1, which is the illegal conveyance into a detention facility, the only evidence they have is the possession. The possession of drugs.
* * *
As I stated, this whole case is built on assumptions. We‘ve got to assume that because he had drugs, he‘s the one, he‘s the only one that could have brought them in after we‘ve heard testimony that there‘s all these other people. * * *
Look at the pictures, look at how big the Pay...Pay Day wrapper was and the other drugs that were found in that besides the heroin and cocaine. There‘s, there‘s multiple items here.
* * *
As I stated from the beginning, we‘re not, we‘re not trying to play hide the ball. Mr. Deckard had the drugs on him redhanded. We‘re just asking you to come back with a not guilty
verdict for the illegal conveyance because there is a lack of evidence and the State will not be, meet its burden beyond a reasonable doubt.”
{¶26} In fact, during closing rebuttal, the State began:
“So from what I take from the defense‘s closing statement is that the State of Ohio has um, presented enough evidence, even in the defense counsel‘s mind that you should convict and find guilty on Count 2 as well as guilty on Count 3 for possession of cocaine and heroin. So with those two out of the way now, we move onto, to Count 1.”
{¶27} Appellant‘s counsel made no objection to this characterization of his closing argument. Given Appellant‘s apparent decision to concede he possessed cocaine and heroin and to contest only the illegal conveyance count, we do not find that admission of the BCI laboratory report constituted plain error. For the foregoing reasons, we find no merit to Appellant‘s first assignment of error and it is hereby overruled.
ASSIGNMENT OF ERROR THREE
{¶28} For ease of analysis, we next consider Appellant‘s third and final assignment of error. Appellant was convicted of Count 1, illegal conveyance of drugs into a detention facility. Appellant, however, contends that there was no evidence of the material element, “conveyance,” presented at his trial. For the following reasons, we disagree.
{¶29} A claim of insufficient evidence invokes a due process concern and raises the question of whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Dunn, 4th Dist. Jackson No. 15CA1, 2017-Ohio-518, ¶ 13; State v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, at ¶ 22; State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt. Thompkins, syllabus. The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). Furthermore, a reviewing court is not to assess “whether the state‘s evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction.” Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring).
LEGAL ANALYSIS
{¶31} In support of his argument that there was insufficient evidence that he conveyed drugs into the Gallia County Jail, Appellant points out that while he was found to be in possession of certain substances, there were 8-10 other inmates housed in the same area. Appellant argues there is no investigatory evidence regarding the other inmates, and no investigatory evidence regarding visitors the other inmates may have received. Appellant further asserts there is no evidence regarding the circumstances of his arrest which would provide him with the opportunity to conceal substances for future conveyance.
{¶33} We begin by setting forth the relevant testimony. Nicholas Cain, a corrections officer at the Gallia County Jail, testified he reported to work at 4:00 p.m. on February 29, 2016. Appellant had been booked into the jail at 9:00 a.m. on February 29th. To Officer Cain‘s knowledge, an anal cavity search warrant was not requested or conducted at the time Appellant was booked.
{¶34} While Officer Cain was performing routine duties, he noticed an odor of burning plastic in B-Block. There were approximately 8 other inmates housed in B-Block on that date. He and another corrections officer, Debra Smith, handcuffed the inmates to bars for the officers’ own safety,
{¶35} Officer Cain testified he performed an initial pat-down on Appellant and felt something. He retrieved a baggie with an unknown substance from Appellant‘s buttocks. Officer Cain handed the baggie through the bars to Officer Smith, who preserved it as evidence and turned it over to Sergeant Jason Brown. Sgt. Brown then preserved the chain of custody and eventually forwarded the baggie to the BCI Task Force technician. Officer Cain identified Appellant in court and Exhibit 1, the baggie.
{¶36} He further testified once they finished the search, other officers arrived to assist. The officers searched the B-Block and found no other drugs or weapons there. Officer Cain took no further part in the investigation.
{¶37} On cross-examination, Officer Cain testified every inmate is initially patted down and then strip-searched when they are booked into the jail. He acknowledged the Gallia County Jail has video cameras above the toilets and showers. He admitted there was no video evidence against Appellant, and that no lighter was recovered. Officer Cain also admitted that his report did not list the names of the other inmates or witnesses
{¶38} On redirect, Officer Cain clarified that the camera systems in the toilet and shower areas do not tape inmates as they shower or use the restroom. The camera systems do not preserve evidence of the inmates performing these personal functions. He also clarified that the reason he did not name other inmates in B-Block in his report was because Appellant was the only person on which drugs were found. To his knowledge, the defense did not request video evidence or visitor log evidence.
{¶39} Officer Debra Smith next testified that whenever inmates are booked into the jail, they are strip-searched and given jail clothing and necessary toiletries. She was working on February 29, 2016, and there were approximately 8-10 inmates housed in B-Block. She also testified during her shift she smelled burning plastic. They handcuffed each inmate to the cell bars. Officer Cain went into the block himself and patted down the inmates and searched them from behind the bars while Officer Smith remained in front of the inmates.
{¶40} Officer Smith testified that when Officer Cain searched Appellant, he “pulled Dustin Deckard back, pulled the back of his pants out
{¶41} Officer Smith also testified that on numerous occasions, inmates bring contraband inside the anal or vaginal cavities. Gallia county officers are only allowed to do general patdown searches. They are required to get a search warrant and transport inmates to the hospital to do body cavity searches. Officer Smith’s cross-examination testimony mirrored Officer Cain’s. She acknowledged that the Prosecutor’s Office, to her knowledge, did not request video evidence. She testified the food trays are searched upon arrival. On redirect, Officer Smith acknowledged that any item brought into the jail through an inmate’s anal cavity would be unbeknownst to the officers until it was outside of the body cavity.
{¶42} Deputy Jason Brown testified he is an evening shift patrol supervisor with the Gallia County Sheriff’s Office. On February 29, 2016, he was working regular patrol when he received information from jail staff
{¶43} Here, the evidence regarding the material element of “conveyance” is clearly only circumstantial. However, “[D]irect evidence of a fact is not required. Circumstantial evidence * * * may * * * be more certain, satisfying, and persuasive than direct evidence.” Dunn, supra, at 25, quoting State v. Grube, 2013–Ohio–692, 987 N.E.2d 287 (4th Dist.), ¶ 30, quoting State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990), citing Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 10, (1960), citing Rogers v. Missouri Pacific RR Co, 352 U.S. 500–508, fn. 17, 77 S.Ct. 443, 449, fn. 17, (1957). Even murder convictions and death sentences can rest solely on circumstantial evidence. Grube, supra, citing State v. Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394 (1987); State v. Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d 1236, 1239 (1988). While the evidence of Appellant’s “conveyance” is circumstantial, we find the
{¶44} The guilty verdict here is based on direct and circumstantial evidence. Both Officers Cain and Smith testified that Appellant would have been patted down and searched upon booking on February 29th at 9:00 a.m. and both officers further testified that although strip-searches are also performed, they are not allowed to do body cavity searches without a warrant. Appellant’s anal cavity was not searched. Later in the day, Officers Cain and Smith investigated a burning smell, searched 8-10 inmates, and found a baggie containing cocaine and heroin located only on Appellant’s person, in his buttocks. From this testimony, the jury obviously inferred circumstantial evidence that Appellant knowingly conveyed the drugs into the jail via his anal cavity, and that he evaded detection of the drugs during the booking process.
{¶45} For the foregoing reasons, after reviewing the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the prosecution, any rational trier of fact could have found the essential element of “conveyance” of drugs into a detention facility proven beyond a reasonable doubt. As such, we find no merit to Appellant’s third assignment of error and it is hereby overruled.
{¶46} Lastly, we consider Appellant’s second assignment of error. Appellant contends he was subjected to Double Jeopardy by the imposition of multiple punishments upon him for a single act. Appellant argues that the trial court committed reversible error by declining to merge the illegal conveyance violation with the drug possession violations.
STANDARD OF REVIEW
{¶47} Appellate courts conduct a de novo review of a trial court‘s
LEGAL ANALYSIS
{¶48} Appellant contends, assuming for argument that he conveyed drugs within himself into the Gallia County Jail, his conduct was a single
{¶49} ”
“(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
{¶50} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Supreme Court of Ohio instructed that courts conduct a three-part inquiry to determine whether offenses are allied offenses of similar import within the meaning of
“Further as to the offenses being committed separately the Court finds that the offenses of possession were committed separately from the offense of illegal conveyance. Mr. Deckard had to have committed the possession offenses prior to the offense of uh, illegally conveying them into the jail. Also as to the separate possession offenses one involved heroin and the other one involved cocaine. As such, the animus for one was the possession of heroin and the animus for the other was the possession of cocaine. Based on the above the Court finds that the offenses of illegal conveyance of drugs onto a detention facility, possession of drugs, the heroin and possession of drugs, the cocaine do not merge for purposes of sentencing.”4
{¶53} Merriam Webster’s Online Dictionary defines “convey” in several ways: “* * * [T]o bear from one place to another; to move: to carry
{¶54} Our research did not yield other cases in which the failure to merge a possession conviction into an illegal conveyance conviction was challenged. In reviewing cases involving appeal of other illegal conveyance convictions, we observe the State provided evidence in many cases that upon booking, defendants were questioned as to whether they were carrying contraband and further, advised if they were later found to be carrying contraband, they would be subject to prosecution for the offense of illegal conveyance. In this manner, a distinct and separate break in the conduct would be obvious. However, the fact that the record herein does not contain evidence of such questioning, or evidence of further advisal to Appellant of a potential additional charge for any conveyance of contraband, does not change the result.
JUDGMENT AFFIRMED.
{¶56} Because the revised principal opinion incorporates the gist of my tentative concurring opinion, I now concur in judgment and opinion.
It is ordered that the JUDGMENT BE AFFIRMED and that costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs with Concurring Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.